Religion Based on Sex Gets a Judicial Review

Special to The New York Times

Published: May 2, 1990

LOS ANGELES, May 1—
A Federal district judge here is considering a novel extension of First Amendment rights to a religion based primarily on ''absolution'' through sex and ''sacrifice'' through a payment of money.

The judge, W. Matthew Byrne, has given a Los Angeles couple a chance to demonstrate that their Church of the Most High Goddess is based on the worship of Isis, the ancient Egyptian goddess of fertility, and is entitled to constitutional protection against interference from the state.

The principal issue of law is whether the enforcement of California's laws against prostitution constitutes an impermissible violation of the couple's First Amendment right to freely exercise their religion.

'Based on Religious Belief?'

''Is the purpose for which one gives a contribution to the church, or for which a priestess receives a contribution made to a church, based on religious belief?'' the judge asked in a pretrial order setting out the terms under which the trial would proceed.

In the same document he also asked, ''Is the purpose for which a priestess engages in sex with members of the church based on religious belief?'' Testimony is expected to conclude next week, with final arguments scheduled for Tuesday. Judge Byrne is hearing the case without a jury.

Wilbur Tracy, 51 years old, and his 47-year-old wife, Mary Ellen Tracy, say their church has a congregation of 2,000 members, a claim undisputed by city attorneys. Mr. Tracy is high priest of the church and his wife is high priestess. The couple, who are representing themselves, are expected to make final arguments in the trial on Wednesday.

Mr. Tracy testified that in establishing the priesthood for his church he deemed that the high priestesses had to have sexual relations with a thousand men before they were fit for the priesthood, and his wife eventually qualified. ''That is part of the development of a woman as high priestess,'' Mr. Tracy testified.

After The Newhall Signal, a weekly newspaper in Ventura County, northwest of Los Angeles, published a series of articles about the Tracys' church early in 1989, their house was searched and they were arrested in April 1989 on charges of pimping, pandering and prostitution. They were convicted in a trial in state court last September and received probation.

His God Is Physically Fit

Since then, they have been arrested again and charged with violating their probation. The current challenge in Federal court is an effort to prevent the state and the city from pursuing that case.

In answer to questions by his wife, Mr. Tracy testified about a revelation he said he received at a beach bungalow in Santa Monica, Calif., in 1984. ''To begin with, it was a brilliant light,'' he said, ''as though knowledge was being poured in without voice.''

He said his god then appeared as an old man with long white hair and a white beard, and seemed to be in good physical condition. ''He didn't work out,'' Mr. Tracy testified. ''He didn't need to.''

Douglas Haack, a carpenter, testified last week that he visited the Tracys' house to have sex with Mrs. Tracy when it was searched by police officers. He said there were ''Egyptian-type'' pictures on the wall, and he testified that Mrs. Tracy talked about her religion and gave him pamphlets as he was about to leave.

Judge Byrne asked, ''When she was having sexual acts, did she discuss the religion?''

A 'Sacrifice' of $100

Mr. Haack replied, ''Each phase had something to do with the religion.'' He paid a $100 ''sacrifice,'' he said.

Another witness was Mai Lin, a woman who described herself as a priestess for the church. The prosecution has said that the church had up to 10 priestesses at any one time.

She testified that as a priestess she allowed men to absolve themselves of their sins through sex with her. ''You couldn't just do a certain amount of men,'' she said. ''You had to know something about the religion.''